DyStar Global Holdings (Singapore) Pte Ltd v Kiri Industries Ltd and others

• Jurisdiction: Singapore
• Court: International Commercial Court (Singapore)
• Judge: Anselmo Reyes IJ,Roger Giles IJ,Kannan Ramesh J
• Judgment Date: 03 March 2020
• Neutral Citation: [2020] SGHC(I) 7
• Citation: [2020] SGHC(I) 7
• Defendant Counsel: Dinesh Dhillon Singh, Margaret Joan Ling Wei Wei, Lim Dao Kai, Teh Shi Ying and Ling Ying Ming, Daniel (Allen & Gledhill LLP)
• Published date: 12 March 2020
• Plaintiff Counsel: Yim Wing Kuen Jimmy SC, Teng Po Yew, and Eunice Lau Guan Ting (Liu Guanting) (Drew & Napier LLC)
• Subject Matter: Damages,Costs,Civil Procedure,Assessment,Quantum
• Date: 03 March 2020
• Docket Number: Suit No 3 of 2017
• Hearing Date: 30 January 2020

Roger Giles IJ (delivering the judgment of the Court):

In our judgment in DyStar Global Holdings (Singapore) Pte Ltd v Kiri Industries Ltd and others [2020] SGHC(I) 01 (“the Judgment”), we directed an agreed statement of damages calculated in conformity with our reasons, together with interest. We also directed the exchange of written submissions on costs, with costs to be determined on the basis of the written submissions unless the Court required or one of the parties requested an oral hearing.

These reasons are concerned with the judgment sum and costs. They use the acronyms used in the Judgment, and assume familiarity with it.

The Judgment Sum

Damages were agreed at USD 542,833.53. A daily rate of interest was agreed, being USD 79.05. The parties were unable to agree on the date from which interest would run. DyStar said from various “value dates” in the calculation of damages, standing for the dates of accrual of loss. Kiri said from the date of commencement of the proceedings.

The grant of pre-judgment interest is the exercise of a wide discretion, including in relation to the period between when the cause of action arose and the date of judgment. A plaintiff is generally entitled to interest from when the loss accrued, but an established circumstance for a later date is where there has been unwarranted delay by the plaintiff: Robertson Quay Investment Pte Ltd v Steen Consultants Pte Ltd and another [2008] 2 SLR(R) 623 at [102]–[103].

The value dates were ranges from 15 December 2015 to 4 March 2016 (FOTL), from 30 August 2012 to 30 August 2018 (Hayleys), and from 30 August 2014 to 30 August 2016 (Brandix). The proceedings were commenced on 27 January 2016.

Kiri submitted that there had been unwarranted delay by DyStar, in that the proceedings were commenced over three years after the first accrual of loss. It submitted also that the proceedings were not genuinely brought in order to recover losses suffered in connection with Kiri’s breaches of the SSSA, but in retaliation to the minority oppression suit brought against Senda.

We do not accept either basis for exercising our discretion against interest from the value dates.

As to delay, while the earliest breaches and the earliest value dates were some years before the commencement of the proceedings, the FOTL breaches were in 2015, the Hayleys breaches continued from 2012 to 2018, and the Brandix breaches were from September 2013 to at least late 2014. The earliest breach was continued until the commencement of the proceedings and thereafter, and the other breaches were more proximate to the commencement of the proceedings; the accruals of loss were in large measure not distant from that commencement and, in part, post-dated it. To the extent that time passed between the breach and the commencement of the proceedings, we do not regard it as undue so as to deny interest whereby proper compensation is given to DyStar.

As to “genuineness”, being a claim for breach of contract, DyStar’s motivation is not relevant. Even if it brought the proceedings on retaliatory inspiration, we do not see why that makes its loss any less real, or detracts from an otherwise fully-existent entitlement to interest. It has been found that DyStar suffered loss, for which it should be compensated.

We note that Kiri said that it did not accept the value dates as the dates on which DyStar’s losses arose. With losses accruing over a period of time, a sensible and practical approach must be taken to the dates of accrual. DyStar’s calculation took the midpoint of the period covered by invoices (FOTL) or of the year (Hayleys and Brandix), plus 60 days as the invoice payment time. In our view, this was an appropriate course. As noted in the Judgment, at the hearing Kiri did not take issue with the methodology in DyStar’s then calculation, which was followed for the calculation in conformity with our reasons.

With interest to 30 January 2020, the damages are USD 675,871.85. Adding interest to date at the daily rate, there will be judgment for USD 678,480.50.

Costs

It was common ground that, although this was a transfer case, costs were governed by the regime in O 110 r 46, by which costs generally follow the event and the unsuccessful party pays the reasonable costs of the successful party. Kiri did not dispute that DyStar was entitled to costs.

DyStar claimed as reasonable costs S$250,000 as professional costs and S$135,985.09 for disbursements, plus S$15,329.03 in relation to the submissions on costs. Kiri submitted that, although the O 110 r 46 regime applied, costs should be assessed with reference to Appendix G of the...